Care England granted right to intervene in Court of Appeal sleep-in shift case
Provider representative body Care England has won the right to intervene in the Court of Appeal’s sleep-in-shift case – with the hope of solving the impending £400m financial crisis for care providers, mainly those who provide specialist care.
With the hearing set for 20-21 March this year, law firm Anthony Collins Solicitors are acting for Care England, with the body given the opportunity to pursue new arguments not yet considered in the Royal Mencap Society vs Tomlinson-Blake Employment Appeal Tribunal (EAT) case to date.
Care England chief executive Professor Martin Green said that, if the existing decision of the Employment Appeal Tribunal were upheld, it would be a watershed moment for the sector, with profound affects for the viability of residential domiciliary and supported care which supports 1.2m vulnerable people across the country.
“I cannot stress the magnitude of this opportunity for our members and the care industry as a whole,” said Prof. Green.
“We argue for a comprehensible, predictable, and workable interpretation of the sleep-in-shift regulations that do not give rise to the potentially crippling multi-million pound consequences for the sector. This should enable providers and their workers to deliver the best care possible.”
The Mencap vs Tomlinson-Blake EAT ruling found care providers such as the Royal Mencap Society must pay the National Minimum Wage (NMW) throughout a sleep-in-shift, triggering a £400m industry back payment and £200m increase in yearly costs from 2020 onwards. The Government has established a Social Care Compliance Scheme to ensure back pay is paid and the Government receive the related tax revenue. A successful appeal would call into question the need for the SCCS scheme.
Matthew Wort, partner at Anthony Collins Solicitors, said surveys had shown that, in practice, on average only 1% of time in sleep-in-shifts is spent working.
“The intervention by Care England introduces other arguments that have not been considered in the case to date,” said Mr Wort.
“The intention of Parliament from the introduction of the National Minimum Wage Regulations was always that people carrying out sleep-ins would only be paid when they are awake and working and we are hopeful that the Court of Appeal will be persuaded to interpret the legislation in that way.”